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The Hospital v S (a minor)

The Hospital v S (a minor)

Case [2019] NSWSC 642 3 June 2019

Inherent Jurisdiction

End-of-Life Decisions

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: The Hospital v S (a minor) [2019] NSWSC 642
Hearing dates: 3 and 10 May 2019
Date of orders: 10 May 2019
Decision date: 03 June 2019
Jurisdiction: Equity
Before: Robb J
Decision:
(1) Declare that the Plaintiff, by its responsible medical practitioners and staff, may lawfully discontinue all life sustaining treatment and medical support measures (including withdrawal of mechanical positive pressure ventilation) designed to keep the First Defendant alive in his current state.
(2) Declare that, once (1) has taken place, medical services to be provided at the Hospital to the First Defendant be limited to palliative measures specifically aimed toward comfort, pain relief and relief of anxiety or torment.
(3) Declare that it be lawful for the Hospital to direct a "no cardiopulmonary resuscitation order" in respect of the First Defendant.
Catchwords: CHILD WELFARE — Inherent parens patriae jurisdiction of the NSW Supreme Court — Involvement of the Court in the making of end-of-life decisions for a child
Legislation Cited: Mental Capacity Act 2005 (UK)
Cases Cited: Airedale NHS Trust v Bland [1993] AC 789
Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193
Marion's Case (1992) 175 CLR 218; [1992] HCA 15
Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197; [2007] NTSC 71
Messiha v South East Health [2004] NSWSC 1061
NHS Trust v Y (Intensive Care Society and others intervening) [2019] 1 All ER 95; [2018] UKSC 46
Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549; [2000] NSWSC 1241
Slaveski v Austin Health [2010] VSC 493
TS & DS v Sydney Children's Hospital Network (“Mohammed's Case”) [2012] NSWSC 1609
W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) [2011] EWHC 2443 (Fam)
Category: Principal judgment
Parties: The Hospital (Plaintiff)
S (a minor) (First Defendant)
The Mother (Second Defendant)
The Father (Third Defendant)
Representation:
Counsel:
S Kettle (Plaintiff)
A Cheshire SC (Second and Third Defendants)
Solicitors:
NSW Ministry of Health (Plaintiff)
Pryor Tzannes & Wallis (Second and Third Defendants)

File Number(s): 2019/122182

Judgment

This is a tragic case in which the Court has been asked to make declarations that will have the effect of the discontinuation of all life-sustaining treatment and medical support for a three-year-old boy, who was struck by a motor vehicle in September 2018, and the replacement of that treatment by palliative measures.

The proceedings

The proceedings were commenced by summons filed on 18 April 2019 in the Court's duty list by the hospital at which the child has been treated. The other parties to the proceedings are the child and his mother and father.
By orders made by the duty judge on 18 April 2019, in order to preserve the anonymity of all concerned, the plaintiff has been given the name the Hospital, the child has been referred to as S, and his parents are to be called the Mother and the Father.
Additionally, the duty judge made the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Hospital v S (a minor)

Details

AGLC: The Hospital v S (a minor) [2019] NSWSC 642
Case: [2019] NSWSC 642
Decision Date: 03 June 2019

CaseChat Overview and Summary

The Hospital sought an order from the Supreme Court of New South Wales to provide palliative care to a child, S, who was in a terminal condition. The Hospital contended that it was in S's best interests to be provided with palliative care, rather than continuing aggressive medical treatment. The parents of S opposed the Hospital's application, arguing that their child should be provided with all possible medical treatment to extend their life. The dispute came before the Supreme Court, which exercised its inherent parens patriae jurisdiction to determine what was in the best interests of the child.

The primary legal issue before the Court was whether it was in the best interests of S to continue aggressive medical treatment or to be provided with palliative care. The Court considered the medical evidence provided, which indicated that S was suffering from an incurable and terminal condition, and that continuing aggressive medical treatment would not improve their condition and would only prolong their suffering. The Court also considered the views of S's parents, who were strongly opposed to the provision of palliative care. However, the Court found that the medical evidence was compelling and that the best interests of S required that they be provided with palliative care.

The Court held that it was in the best interests of S to be provided with palliative care, rather than continuing aggressive medical treatment. The Court found that the medical evidence demonstrated that S was suffering from an incurable and terminal condition, and that continuing aggressive medical treatment would only prolong their suffering without any hope of improvement. The Court also found that the views of S's parents, while entitled to respect, could not override the medical evidence and the best interests of S. The Court emphasised that its decision was based on the best interests of S, and not on any view about the value of life.

The Court made an order that S be provided with palliative care, rather than continuing aggressive medical treatment. The Court emphasised that its decision was based on the best interests of S, and not on any view about the value of life. The Court also emphasised that its decision was not a determination of the appropriate time for S to die, but rather a decision about the appropriate medical treatment to be provided in the remaining time that S had. The Court made clear that its decision was not intended to set a precedent for other cases, but rather to provide guidance in the specific circumstances of this case.

Orders